Citation Nr: 0011217
Decision Date: 04/27/00 Archive Date: 05/04/00
DOCKET NO. 97-15 652 ) DATE
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
skin disorder as secondary to Agent Orange (AO) exposure.
2. Entitlement to service connection for skin cancer, a
sleep disorder and a prostate disorder as secondary to AO
exposure.
3. Entitlement to service connection for memory loss, a
urinary tract infection, and a kidney disorder.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans
Affairs
INTRODUCTION
The veteran had active military service from March 1968 to
October 1969.
This appeal arose from an April 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon.
The RO in pertinent part, determined that new and material
evidence had not been submitted to reopen a claim of
entitlement to service connection for a skin disorder as
secondary to AO exposure. The RO also denied the veteran's
claims of entitlement to service connection for skin cancer,
a sleep disorder and a prostate disorder as secondary to AO
exposure and for memory loss, a urinary tract infection, and
a kidney disorder.
In October 1999 the Board of Veterans' Appeals (Board)
remanded the veteran's appeal to satisfy the veteran's
request for a hearing. In February 2000 the veteran withdrew
his hearing request.
The case has been returned to the Board for further appellate
review.
The Board notes that in the April 1996 rating decision, the
RO also declined to reopen a claim of entitlement to service
connection for a back disorder. The veteran perfected an
appeal from that determination but in July 1998 the RO
granted entitlement to service connection for a lumbosacral
strain with degenerative disc disease with assignment of a 40
percent evaluation effective June 26, 1995, date of claim.
That decision constituted a full award of those benefits
sought on appeal. See Grantham v. Brown, 114 F.3d 1156,
1158-59 (Fed. Cir. 1997)(overruling West v. Brown, 7 Vet.
App. 329 and ruling that a notice of disagreement (NOD)
applies only to the element of the claim being decided, such
as service connectedness.
FINDINGS OF FACT
1. The RO denied the claim of entitlement to service
connection for a skin disorder as secondary to AO exposure
when it issued an unappealed rating decision in April 1994.
2. The evidence submitted since the April 1994 rating
decision is neither wholly duplicative nor cumulative, and is
so significant that it must be considered in order to fairly
decide the merits of the claim.
3. The claim of entitlement to service connection for a skin
disorder as secondary to AO exposure is not supported by
cognizable evidence showing that the claim is plausible or
capable of substantiation.
4. The claim of entitlement to service connection for skin
cancer, a sleep disorder and a prostate disorder as secondary
to AO exposure is not supported by cognizable evidence
showing that the claim is plausible or capable of
substantiation.
5. The claim of entitlement to service connection for memory
loss, a urinary tract infection, and a kidney disorder is not
supported by cognizable evidence showing that the claim is
plausible or capable of substantiation.
CONCLUSIONS OF LAW
1. Evidence received since the final April 1994
determination wherein the RO denied the claim of entitlement
to service connection for a skin disorder as secondary to AO
exposure is new and material, and the veteran's claim for
that benefit has been reopened. 38 U.S.C.A. §§ 5104, 5108,
7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a),
20.1103 (1999).
2. The claim of entitlement to service connection for a skin
disorder (other than skin cancer) is not well grounded.
38 U.S.C.A. § 5107 (West 1991).
3. The claim of entitlement to service connection skin
cancer, a sleep disorder and a prostate disorder as secondary
to AO exposure is not well grounded. 38 U.S.C.A. § 5107.
4. The claim of entitlement to service connection for memory
loss, a urinary tract infection, and a kidney disorder is not
well grounded. 38 U.S.C.A. § 5107.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Whether new and material evidence has
been submitted to reopen a claim of
entitlement to service connection for a
skin disorder as secondary to AO
exposure.
Factual Background
The evidence which was of record prior to the April 1994
rating decision wherein the RO denied entitlement to service
connection for a skin disorder as secondary to AO exposure is
reported in pertinent part below.
Service medical records show that at the time of the
veteran's enlistment examination in February 1968 his skin
was normal with the exception of various marks and scars. By
history he denied skin diseases.
In April 1968 the veteran reported itching all over. There
was a question of an allergy to wool.
Service medical records from October 1968 note treatment for
jungle rot affecting the hands and fingers as well as the
left leg/foot. A dermatology consultation noted crusty
weeping lesions on the left leg and back of the neck.
Duration was listed as two months. The impression was
pyoderma. Notations from January 1969 indicate that jungle
rot persisted.
A March 1969 report indicated that the veteran received
shrapnel wounds due to enemy action while engaging the enemy
in connection with Operation Swift in September 1968 in the
Republic of Vietnam. He was recommended for the Purple Heart
Award.
The veteran's record of service DD Form 214MC, noted awards
including a Combat Action Ribbon, a Purple Heart Medal, a
Presidential Unit Citation, a Vietnam Service Medal with
three stars, and a Vietnam Campaign Medal with device.
Service personnel records also showed service in the Republic
of Vietnam and a "combat history" of participation in
several operations from September 1968 to November 1968.
Other records from 1969 indicate that the veteran received
treatment for wart type growths on the feet.
On discharge from active duty the veteran's skin was normal
except for various marks and scars. There was no diagnosis
of a skin disorder.
A VA examination was conducted in November 1974. The
examination focused on shell fragment wounds to the lower
extremities. There was no indication of a skin disorder.
Treatment records from 1971 and 1972 likewise showed no
indication of a skin disorder.
In a statement submitted in September 1990 the veteran
asserted that he was exposed to AO in service and had had a
recurrent skin rash.
A VA hospitalization report from September 1990 and
associated follow-up records from October and November 1990
were received. The veteran was seen for back problems.
There was no indication of a skin rash or other skin
disorder.
The April 1994 RO denial of service connection for a
"recurrent skin rash due to herbicide exposure" was made on
the basis of the evidence of record specifically including
the service medical records, the VA examination report of
November 1974, and the VA hospitalization and outpatient
records from September through November 1990.
The RO determined that veteran was treated in service for
"jungle rot." The remainder of the evidence of record was
silent for any diagnosed skin disorder. The disorder in
service was acute without any residuals shown.
Furthermore a presumption of service connection based on
exposure to herbicides in Vietnam was not warranted for a
disease other than those for which VA has found a positive
association to herbicide exposure. The RO found that the
veteran did not have a diagnosis of any disorder for which
the presumption was available including chloracne.
The veteran was notified of the rating decision by letter
dated in April 1994 sent to his address of record.
In June 1995 the veteran reported that he had a "skin
condition/problems." In a later statement submitted in
January 1996 he specified that he had various skin disorders
including beginning and advanced cancerous areas on his arms,
face, ears, nose and eyebrow areas.
A VA social and industrial survey was provided in March 1996.
The veteran focused mainly on his combat experiences and his
back but did report that he had jungle rot on his hands in
service with an ongoing rash after service.
A VA dermatology examination was conducted in April 1996.
The veteran had various complaints including a recurrent or
off and on itch or slightly dry skin on his dorsal arms, a
history of groin fungus, shell fragment scars, and
precancerous lesions on his face.
The veteran stated that his itchy and dry skin disappeared
without treatment. He stated that he had had it since he was
in Vietnam. The groin fungus reportedly started only two
years before and had been waxing and waning. He reported
treatment in the form of a pill and ointment, which caused
the fungus to clear completely. He denied any treatment of
the feet.
An examination was conducted after which the examiner made
the following pertinent diagnoses: history of actinic
keratoses treated in the past with no evidence of persistence
or recurrence; history of tinea cruris treated in the past
that appeared to be completely resolved; and complaint of
recurrent pruritic eruption on his dorsal arms, especially in
the summer, that could be a type of photodermatitis or
contactant.
The examiner stated that photodermatitis was less likely
given that the veteran did not have symptoms in the "V of
the neck" or on the face. It was also noted that there was
no evidence of chloracne. There were not typical erosions on
his dorsal hands or face or stigmata of possible porphyria.
The dry skin eruption on his arms was felt to possibly be
photo-related. There did not appear to be porphyria cutanea
tarda or another AO related cause. The tinea in his groin
appeared to be of recent history.
The examiner explained that the veteran's feet were not
examined because he denied any problems with his feet.
Overall he had a variety of skin complaints, none of which
appeared to be related to exposure to AO or otherwise to any
problems encountered in service.
In June 1997 the veteran submitted VA treatment records from
1970 to 1979. Most of these pertain to treatment of the back
and other orthopedic complaints. However, a record from
August 1979 showed that he was seen for jungle rot of the
feet. He reported itching on his feet for several years.
The assessment was tinea pedis.
In the course of a neuropsychiatric consultation from
December 1997 the veteran incidentally noted head itching and
bumps on the forehead which he attributed to medication. No
diagnosis of a skin disorder was made.
The veteran was hospitalized through VA in February and March
1998 for a post traumatic stress disorder (PTSD) program. He
gave a history of exposure to AO in Vietnam. During the
hospitalization, red, brownish petechial patches were
observed. These were generally in annular or linear
formations and seemed to disappear in 24 hours and reappear
in various locations over the lower extremities. These were
felt to be consistent with the diagnosis of pigmented
purpuric dermatosis.
Criteria
If no NOD is filed within the prescribed period, the action
or determination shall become final and the claim will not
thereafter be reopened or allowed, except as otherwise
provided by regulation. 38 U.S.C.A. § 7105(c); 38 C.F.R.
§ 20.1103.
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108. See Manio v. Derwinski, 1
Vet. App. 140, 145 (1991).
A decision of a duly constituted rating agency or other
agency of original jurisdiction shall be final and binding on
all field offices of the Department of Veterans Affairs as to
conclusions based on the evidence on file at the time VA
issues written notification in accordance with 38 U.S.C.A.
§ 5104. A final and binding agency decision shall not be
subject to revision on the same factual basis except by duly
constituted appellate authorities or except as provided in §
3.105 of this part. 38 C.F.R. § 3.104(a).
Despite the finality of a prior final RO decision, a claim
will be reopened and the former disposition reviewed if new
and material evidence is presented or secured with respect to
the claim which has been disallowed. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156(a).
The United States Court of Appeals for Veterans Claims
(Court) has held that when "new and material evidence" is
presented or secured with respect to a previously and finally
disallowed claim, VA must reopen the claim. Manio, 1 Vet.
App. 140, 145.
The Court has held that VA is required to review for its
newness and materiality only the evidence submitted by an
appellant since the last final disallowance of a claim on any
basis in order to determine whether a claim should be
reopened and readjudicated on the merits. Evans v. Brown, 9
Vet. App. 273 (1996).
In order to reopen a claim by providing new and material
evidence, the appellant must submit evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a).
New evidence is evidence that (1) was not in the record at
the time of the final disallowance of the claim, and (2) is
not merely cumulative of other evidence in the record. Smith
v. West, 12 Vet. App. 312 (1999); Evans, 9 Vet. App. 273,
283.
New evidence is considered to be material where such evidence
provides a more complete picture of the circumstances
surrounding the origin of the veteran's injury or disability,
even where it will not eventually convince the Board to alter
its decision. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir.
1998).
If the Board determines that new and material evidence has
been presented under 38 C.F.R. § 3.156(a), the claim is
reopened, and it must next be determined whether the
appellant's claim, as then reopened, is well grounded in
terms of all the evidence in support of the claim, generally
presuming the credibility of that evidence. Elkins v. West,
12 Vet. App. 209, 218-219 (1999).
If the claim is well grounded, the case will be decided on
the merits, but only after the Board has determined that VA's
duty to assist under 38 U.S.C.A. § 5107 has been fulfilled.
The Court noted in Elkins, and Winters v. West, 12 Vet.
App. 203 (1999) that by the ruling in Hodge supra, the
Federal Circuit Court "effectively decoupled" the
determinations of new and material evidence and well
groundedness.
Thus, if the Board determines that additionally submitted
evidence is "new and material," it must reopen the claim
and perform the second and third steps in the three-step
analysis, evaluating the claim for well-groundedness in view
of all the evidence, both new and old, and if appropriate,
evaluating the claim on the merits. Elkins, 12 Vet.
App. 209; Winters, 12 Vet. App. 203.
The Board does not have jurisdiction to consider a previously
adjudicated claim unless new and material evidence is
presented. Barnett v. Brown, 83 F. 3d 1380, 1384 (Fed. Cir.
1996).
When new and material evidence has not been submitted in a
previously denied claim "[f]urther analysis...is neither
required, not permitted." Butler v. Brown, 9 Vet. App. 167,
171 (1996) (finding in a case where new and material evidence
had not been submitted that the Board's analysis of whether
the claims were well grounded constituted a legal nullity).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110.
Service connection connotes many factors but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. This may
be accomplished by affirmatively showing inception or
aggravation during service or through the application of
statutory presumptions.
Each disabling condition shown by a veteran's service
records, or for which service connection is sought must be
considered on the basis of the places, types and
circumstances of the veteran's service as shown by service
records, the official history of each organization in which
the veteran served, medical records and all pertinent medical
and lay evidence.
Determinations as to service connection will be based on
review of the entire evidence of record, with due
consideration to the policy of VA to administer the law under
a broad and liberal interpretation consistent with the facts
in each individual case. 38 C.F.R. § 3.303(a) (1999).
With chronic disease shown as such in service (or within the
presumptive period under § 3.307) so as to permit a finding
of service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. This rule does not mean that any
manifestation of joint pain, for example, in service will
permit service connection of arthritis, first shown as a
clear-cut clinical entity, at some later date.
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic."
When the disease identity is established, there is no
requirement of evidentiary showing of continuity. Continuity
of symptomatology is required only where the condition noted
during service (or in the presumptive period) is not, in
fact, shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. When the fact of
chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b) (1999).
A disease associated with exposure to certain herbicide
agents listed in 38 C.F.R. § 3.309 will be considered to have
been incurred in service under the appropriate circumstances
even though there is no evidence of such disease during the
period of service.
The diseases listed at § 3.309(e) shall have become manifest
to a degree of 10 percent or more at any time after service,
except that certain listed diseases including chloracne or
other acneform disease consistent with chloracne, and
porphyria cutanea tarda shall have become manifest to a
degree of 10 percent or more within a year after the last
date on which the veteran was exposed to an herbicide agent
during active military, naval, or air service.
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era and
has a disease listed at § 3.309(e) shall be presumed to have
been exposed during such service to an herbicide agent,
unless there is affirmative evidence to establish that the
veteran was not exposed to any such agent during that
service. 38 C.F.R. § 3.307(a)(6) (1999).
If a veteran was exposed to an herbicide agent during active
military, naval, or air service, chloracne or other acneform
disease consistent with chloracne, porphyria cutanea tarda,
and certain defined soft-tissue sarcomas shall be service-
connected if the requirements of §3.307(a)(6) are met even
though there is no record of such disease during service,
provided that the rebuttable presumption provisions of §
3.307(d) are also satisfied.
The term "soft-tissue sarcoma" includes the following: adult
fibrosarcoma; dermatofibrosarcoma protuberans; malignant
fibrous histiocytoma; liposarcoma; leiomyosarcoma;
epithelioid leiomyosarcoma (malignant leiomyoblastoma);
rhabdomyosarcoma; ectomesenchymoma; angiosarcoma
(hemangiosarcoma and lymphangiosarcoma); proliferating
(systemic) angioendotheliomatosis; malignant glomus tumor;
malignant hemangiopericytoma; synovial sarcoma (malignant
synovioma); malignant giant cell tumor of tendon sheath;
malignant schwannoma, including malignant schwannoma with
rhabdomyoblastic differentiation (malignant triton tumor),
glandular and epithelioid malignant schwannomas; malignant
mesenchymoma; malignant granular cell tumor; alveolar soft
part sarcoma; epithelioid sarcoma; clear cell sarcoma of
tendons and aponeuroses; extraskeletal Ewing's sarcoma;
congenital and infantile fibrosarcoma; and malignant
ganglioneuroma. 38 C.F.R. § 3.309(e) (1999).
In McCartt v. West, 12 Vet. App. 164 (1999), the Court held
that a veteran is not entitled to presumptive herbicide
exposure solely on the basis of having served in the Republic
of Vietnam. The Court held that both service in the Republic
of Vietnam during the designated time period and the
establishment of one of the listed diseases is required in
order to establish entitlement to the in service presumption
of exposure to a herbicide agent.
It has been held that where a claim is filed under a
presumptive provision, the veteran is not precluded from
establishing service connection with proof of actual direct
causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
That is to say that if service connection is not supported
under a presumptive paragraph, a determination must be made
whether the disease was actually incurred in or aggravated by
service. The veteran could also seek presumptive service
connection on another ground if applicable.
Malignant tumors may also be presumptively service connected
as a chronic disease if manifested to a compensable degree
within one year after service. 38 C.F.R. §§ 3.307, 3.309(a)
(1999). Chronic idiopathic purpura, scleroderma and diseases
that may affect the skin including systemic lupus
erythematosus and sarcoidosis are also listed chronic
diseases for which presumptive service connected is provided.
Section 5107 of Title 38, United States Code unequivocally
places an initial burden upon the claimant to produce
evidence that his claim is well grounded; that is, that his
claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139
(1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993).
For a claim for service connection to be well grounded, there
must be competent evidence of a current disability in the
form of a medical diagnosis, of incurrence or aggravation of
disease or injury in service in the form of lay or medical
evidence, and of a nexus between in service injury or disease
and current disability in the form of medical evidence.
Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition, in
the absence of proof of a present disability there can be no
valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992).
The second and third elements of the Caluza test can also be
satisfied by evidence that a condition was "noted" in
service or during an applicable presumptive period; evidence
showing post service continuity of symptomatology; and
medical or, in certain circumstances, lay evidence between
the present disability and the post service symptomatology.
Savage v. Gober, 10 Vet. App. 488 (1997).
Where the determinative issue involves causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is possible or plausible is required. Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990).
The claimant does not meet this burden by merely presenting
his lay opinion because he is not a medical health
professional and does not constitute competent medical
authority. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Lay assertions cannot constitute cognizable evidence, and as
cognizable evidence is necessary for a well-grounded claim,
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), a claim
based only on the veteran's lay opinion is not well grounded.
In determining whether a claim is well grounded, the
claimant's evidentiary assertions are presumed true unless
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19, 21 (1993).
The Court has held that if the veteran fails to submit a
well-grounded claim, VA is under no duty to assist in any
further development of the claim. 38 U.S.C.A. § 5107(a);
Gilbert v. Brown, 5 Vet. App. 91, 93 (1993); Epps v. Gober,
126 F.3d 1464 (Fed. Cir. 1997); 38 C.F.R. § 3.159(a) (1998).
See also McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997).
In Morton v. West, 12 Vet. App. 477 (1999), the Court
concluded that the Secretary, by regulation, Manual, and/or
Compensation and Pension (C&P) policy cannot eliminate the
condition precedent placed by Congress upon the inception of
his duty to assist. Absent the submission and establishment
of a well-grounded claim, the Court held that the Secretary
cannot undertake to assist a veteran in developing facts
pertinent to his or her claim.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3.
Analysis
New and material evidence
The appellant seeks to reopen his claim of entitlement to
service connection for a skin disorder as secondary to AO
exposure, which the RO denied in April 1994. Specifically
the veteran asserts that he has a recurrent skin rash
affecting various parts of his body since service. A
separate claim of entitlement to service connection for skin
cancer is addressed below.
When a claim is finally denied by the RO, the claim may not
thereafter be reopened and allowed, unless new and material
evidence has been presented. 38 U.S.C.A. § 7105; 38 C.F.R.
§ 3.104.
When an appellant seeks to reopen a finally denied claim, the
Board must review all of the evidence submitted since that
action to determine whether the claim should be reopened and
readjudicated on a de novo basis. Glynn v. Brown, 6 Vet.
App. 523, 529 (1994).
In order to reopen a finally denied claim there must be new
and material evidence presented since the claim was last
finally disallowed on any basis, not only since the claim was
last denied on the merits. Evans, 9 Vet. App. 273.
Under Evans, evidence is new if not only previously of record
and is not merely cumulative of evidence previously of
record.
The evidence of record at the time of the April 1994 rating
decision consisted of the service medical records, a VA
examination from November 1974 which was not for the purpose
of evaluating a skin disorder, and VA and outpatient
treatment records from September through November of 1990.
The basis of the April 1994 decision was that the veteran's
treatment in service was acute and that after service no
residuals were shown. After discussing the inservice
findings the RO wrote "Other cited objective medical
evidence is silent for treatment of or complaints of skin
condition." Furthermore there was no diagnosis of chloracne
or any other disease with skin manifestations for which a
presumption of service connection based on exposure to
herbicides in Vietnam was warranted.
The evidence submitted since the RO April 1994 final denial
is largely new evidence that was not previously considered.
The veteran attended VA examinations including a VA
dermatology examination and other treatment records were
obtained as well.
Upon review of the evidence added to the record since the
April 1994 rating decision the Board observes that the
veteran has still not submitted evidence that he has a
disease for which a presumption of service connection based
on exposure to herbicides is available. 38 C.F.R.
§ 3.309(e). There is no diagnosis of chloracne or any other
disease consistent with chloracne and there is no diagnosis
of soft tissue sarcomas or of skin manifestations of
porphyria cutanea tarda.
However, unlike in 1994, the record now contains VA
examination reports and post service medical records showing
treatment in the 1970's for tinea pedis of several years
duration, claimed as jungle rot of the feet, and multiple
other skin complaints including a dry itching skin condition
which has not been decisively diagnosed, and resolved tinea
cruris or a fungus infection of the groin. A diagnosis of a
pigmented purpuric dermatosis was made in 1998, although a
later record shows that this apparently cleared up after
treatment.
In the case of skin disorders, absence of findings on any
given examination is not necessarily conclusive proof that
there is no disability if the disability has active and
inactive phases, Ardison v. Brown, 6 Vet. App. 405, 1994.
In short, the evidence submitted after April 1994 is
overwhelmingly new in that it was largely not previously of
record and not merely cumulative or duplicative of the
evidence previously considered (service medical records and
post service records showing no skin disorder).
This new evidence bears directly and substantially on the
basis of the prior denial, the lack of evidence of a residual
skin disorder after service. The veteran's testimony and
medical records are also material in that they show
continuity of symptomatology after service. The new evidence
submitted by him is credible and competent, and bears
directly and substantially on the issue at hand. Therefore
the appellant's claim is reopened.
As the Board noted earlier, the Court recently announced a
three step test with respect to new and material evidence
cases. Under the Elkins test, VA must first determine
whether the veteran has submitted new and material evidence
under 38 C.F.R. § 3.156 to reopen the claim; and if so, VA
must determine whether the claim is well grounded based on a
review of all the evidence of record; and lastly, if the
claim is well grounded, VA must proceed to evaluate the
merits of the claim but only after ensuring that the duty to
assist has been fulfilled. Winters, 12 Vet. App. 203;
Elkins, 12 Vet. App. 209.
As new and material evidence has been submitted, the Board's
analysis must proceed to a determination of whether the
appellant's reopened claim is well grounded; and if so, to an
evaluation of the claim on the merits.
Well groundedness
Section 5107 of Title 38, United States Code unequivocally
places an initial burden upon the veteran to produce evidence
that his claim is well grounded; that is, that his claim is
plausible. Grivois, 6 Vet. App. 136, 139; Grottveit, 5 Vet.
App. 91, 92. Because the veteran has failed to meet this
burden, the Board finds that his claim of entitlement to
service connection for a skin disorder as secondary to AO
exposure is not well grounded.
The Board reiterates the three requirements for a well
grounded claim: (1) medical evidence of a current
disability; (2) medical or, in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and, (3) medical evidence of a nexus between the
claimed inservice injury or disease and a current disability.
See Caluza, supra.
The Board's review of the evidentiary record discloses that
the veteran received treatment in service in Vietnam for
jungle rot and pyoderma. He received treatment in the late
1970's for jungle rot affecting the feet, by history of
several years duration.
The medical evidence from the 1990's shows treatment of skin
symptoms in the groin, the arms, and the legs. Various
diagnoses were considered including actinic keratoses, tinea
cruris a recurrent pruritic eruption that could be a type of
photodermatitis or contactant, and a purpuric dermatosis.
However, the claim is not well grounded because the veteran
has not submitted probative medical evidence of a nexus
between a current diagnosis and the treatment in service. In
fact, there is medical opinion that his skin symptoms are not
related to AO exposure or otherwise to his service.
VA may not rely on its own unsubstantiated medical judgment
and is incompetent to, in essence, formulate medical
diagnoses or make conclusions on questions of etiology in the
absence of medical evidence. See Thurber v. Brown, 5 Vet.
App. 119, 122 (1993); Colvin v. Derwinski, 1 Vet. App. 171,
175 (1991). The veteran clearly had skin problems in service
and has skin problems now. Unfortunately medical evidence
associating post service findings with in service findings is
necessary. The Board cannot say whether what the veteran has
now is the same disease as was shown in service or whether it
is related. That is a question that only a competent medical
expert could answer.
Simply put, there is no evidence that the veteran currently
has a chronic acquired disorder of the skin which developed
in service or during an applicable presumption period.
Competent medical evidence does not exist of a relationship
between any currently diagnosed skin disorder and the
symptomatology reported in service. Voerth v. West, 13 Vet.
App. 117 (1999); McManaway v. West, 13 Vet. App. 60 (1990);
Savage, 10 Vet. App. 488.
In essence, the veteran's claim is based solely on his lay
opinion. He has not offered any evidence of medical training
or expertise demonstrating that he has been trained in the
medical arts thereby rendering him competent to offer an
opinion as to diagnosis and/or etiology of a disorder. His
clearly alleging a fact which is beyond his competence to do
so. Espiritu, 2 Vet. App. 492; King, 5 Vet. App. 19, 21.
While a lay person may report his symptomatology, he does not
have the competency of a trained health care professional to
express opinions as to diagnosis and/or etiology as to any
claimed disorder. Assertions as to these matters are
therefore not presumptively credible. King, 5 Vet. App. 19,
21.
As it is the province of trained health care professionals to
enter conclusions that require medical opinions as to
causation, Grivois, 6 Vet. App. 136, 139, the veteran's lay
opinion is an insufficient basis upon which to find his claim
well grounded. Espiritu, 2 Vet. App. 492.
Accordingly, as a well-grounded claim must be supported by
evidence, not merely allegations, Tirpak, 2 Vet. App. 609,
611, the appellant's reopened claim of entitlement to service
connection for a skin disorder as secondary to AO exposure
must be denied as not well grounded.
The veteran has been notified of the evidence necessary to
establish a well-grounded claim, and he has not indicated the
existence of any post service medical evidence that has not
already been requested and/or obtained that would well ground
his claim. 38 U.S.C.A. § 5103(a) (West 1991); McKnight, 131
F.3d 1483; Epps, 126 F.3d 1464.
The Board views its foregoing discussion as sufficient to
inform the veteran of the elements necessary to complete his
application to reopen this claim. Graves v. Brown, 8 Vet.
App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78
(1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997);
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
As the claim for service connection for a skin disorder is
not well grounded, the doctrine of reasonable doubt has no
application to the veteran's case.
As the Board noted earlier, the Court announced a three step
test with respect to new and material cases. Under the
Elkins test, VA must first determine whether the veteran has
submitted new and material evidence under § 3.156 to reopen
the claim; and if so, VA must determine whether the claim is
well grounded based on a review of all the evidence of
record; and lastly, if the claim is well grounded, VA must
proceed to evaluate the merits of the claim but only after
ensuring that the duty to assist has been fulfilled.
Winters, 12 Vet. App. 203, 206; Elkins, 12 Vet. App. 209,
218-19.
The Board has already determined that new and material
evidence was submitted to reopen the claim of entitlement to
service connection for a skin disorder and that the claim is
not well grounded. The first element was met. The second
element of the test was not met. Accordingly, the Board's
analysis must end here. Butler, 9 Vet. App. at 171.
II. Entitlement to service connection
for skin cancer, a sleep disorder and a
prostate disorder as secondary to AO
exposure and for memory loss, a urinary
tract infection, and a kidney disorder.
Factual Background
Service medical records show that at the time of the
veteran's enlistment examination in February 1968 his skin
was normal with the exception of various marks and scars.
Urinalysis was negative as was examination of the abdomen and
viscera and the genitourinary system. The prostate was
normal.
By history the veteran denied kidney trouble, kidney stones,
blood in the urine, frequent or painful urination, sugar or
albumin in the urine, frequent trouble sleeping, and skin
diseases. He reported a head injury with headache, dizziness
or fainting spells, and periods of unconsciousness and
explained that that he had been struck by a car and had a
skull fracture with headaches and unconsciousness.
Service medical records from October 1968 note treatment for
jungle rot affecting the hands and fingers as well as the
left leg/foot. A dermatology consultation noted crusty
weeping lesions on the left leg and back of the neck. The
impression was pyoderma. There was no indication of cancer.
Records from November and December 1968 noted that the
veteran had a history of pain in various joints and
"slightly" high or elevated uric acid levels. Gout was
considered but there was no indication of a kidney disorder
or urinary tract infection.
A March 1969 report indicated that the veteran received
shrapnel wounds due to enemy action while engaging the enemy
in connection with Operation Swift in September 1968 in the
Republic of Vietnam. He was recommended for the Purple Heart
Award.
On discharge from active duty the veteran's skin was normal
except for various marks and scars. Urinalysis was negative.
His abdomen, viscera and genitourinary system were normal, as
was his prostate. There was no indication of difficulty
sleeping, or memory loss.
A VA examination was conducted in November 1974. Lab results
were taken but the significance of the results, if any, was
not discussed. The examination focused on shell fragment
wounds to the lower extremities. There was no indication of
skin cancer. Treatment records from 1971 and 1972 likewise
showed no indication of skin cancer, a sleep disorder, a
prostate disorder, memory problems, a urinary tract
infection, or a kidney disorder.
In a statement submitted in September 1990 the veteran
asserted that he was exposed to AO in service and had had a
recurrent skin rash.
A VA hospitalization report from September 1990 and
associated follow-up records from October and November 1990
were received. The veteran was seen for back problems.
The discharge report noted that the abdomen was normal as was
the prostate and the genitalia. There was no indication of a
prostate disorder, a urinary tract infection, or a kidney
disorder. There was no indication of any skin cancer. Lab
results were provided but the significance of the results, if
any, was not discussed. Urinalysis was reportedly negative.
The veteran was oriented. There was no indication of memory
deficit or a sleep disorder.
Occupational and physical therapy reports noted a history of
poor sleeping (three to four hours per night) for three to
four months.
In June 1995 the veteran reported that he had numerous
medical disorders including skin cancer, a sleep disorder,
loss of memory, a urinary tract disorder, kidney problems,
and residuals of AO exposure.
In a later statement submitted in January 1996, the veteran
specified that he had beginning and advanced cancerous areas
on his arms, face, ears, nose and eyebrow areas. He also
reported that he had a prostate infection, and other problems
including lack of sleep.
The veteran's record of service DD Form 214MC, noted awards
including a Combat Action Ribbon, a Purple Heart Medal, a
Presidential Unit Citation, a Vietnam Service Medal with
three stars, and a Vietnam Campaign Medal with device.
Service personnel records also showed service in the Republic
of Vietnam and a "combat history" of participation in
several operations from September 1968 to November 1968.
A VA social and industrial survey was provided in March 1996.
The veteran focused mainly on his combat experiences and his
back. He reported some treatment for skin problems but did
not report any skin cancer. He added that he had a prostate
infection.
At the interview the veteran denied difficulty going to sleep
but stated that he would wake up often during the night, an
average of three to four times per night, and would have
nightmares "three to four hours per month" with nightly
night sweats.
VA examinations were conducted in March and April 1996.
During the VA urology examination the veteran related that he
developed a rather sudden onset of urinary urgency and urge
incontinence about two years before. He stated that at that
time he would frequently lose urine in his attempts to make
it to the bathroom when the urge struck him. He reported
double voiding especially with drinking large amounts of
coffee and nocturia averaging once per night. There was no
report of burning, stress incontinence, or difficulty in
starting the urinary stream and no blood in the urine. He
denied a prior history of kidney stones or past
pyelonephritis. He reported that he had received a VA
diagnosis of prostatitis based on white blood cells in his
urine and was treated with antibiotics without improvement of
his symptoms. After examination the relevant diagnosis was
prostatitis.
During the VA psychiatric examination the veteran reported
frequent awakenings and difficulty falling asleep, frequent
night sweats and nightmares about Vietnam. The examiner
noted that sleeping problems were part of the criteria for
PTSD.
The veteran's wife also reported that the veteran would snore
and frequently stop breathing. The examiner stated that
"one wonders if he does not have a sleep apnea problem."
Mental status examination showed cognitive function to be
"reasonably good" although he appeared to be on the "dull
side." Testing showed no specific evidence of cognitive
impairment. No diagnosis was made of a sleep disorder.
The dermatology examination in April 1996 noted various
complaints including of precancerous lesions on the face. An
examination was conducted after which the examiner made a
diagnosis of a history of actinic keratoses treated in the
past with no evidence of persistence or recurrence. Overall
the veteran had a variety of skin complaints, but cancer was
not diagnosed and none of the complaints appeared to be
related to exposure to AO or otherwise to any problems
encountered in service.
A VA hospitalization report from April and May 1996 noted
various psychological diagnoses. The veteran reported, in
pertinent part, decreased sleep and concentration. His past
medical history was relevant for benign prostatic hypertrophy
and he was receiving antibiotics for a urinary tract
infection. An abdominal ultrasound was negative. On mental
status examination the veteran had some difficulty with
attention and concentration but had good memory. A chemistry
panel was described as unremarkable.
In June 1996 various urology lab results were received but
these were not interpreted and the significance of the lab
results is unclear.
The veteran underwent a VA sleep disorders workup in June
1996. The evaluation was for loud snoring and spousal-
witnessed apneas. He felt that his major problem was
inability to fall asleep and to return to sleep after
awakening. He also reported nightmares and flashbacks to
Vietnam. Treatment consisted of Trazodone. The veteran's
wife recalled that the veteran had snored since they were
married 23 years before. There were times when he stopped
breathing in his sleep.
The assessment was that complaints pertaining to sleep onset
and maintenance insomnia most likely were "a reflection of
his depression." The history also suggested a possible
rapid eye movement (REM) behavior disorder, sleep disordered
breathing and periodic leg movements during sleep.
Overnight polysomnography was performed. The assessment was
that studies revealed no apneas or hypopneas. There was
snoring during REM sleep just prior to termination of the
study. Sleep maintenance insomnia was related to PTSD (fear
of returning to sleep after waking from a bad dream) and
probably depression. The test showed period limb movements
in sleep (PLMS) and an abnormal arousal index but the veteran
did not have daytime sleepiness and his fatigue was felt to
possibly relate to depression rather than PLMS associated
arousals. No treatment was recommended for PLMS.
A report from January 1997 notes that the veteran was
hospitalized for a penile implant. He was noted to have
Peyronie's Disease with increased penile curvature and
decreased erectile strength. He also complained of increased
urinary frequency but no changes in stream or symptoms of
straining. An examination was conducted and lab results were
received but no diagnosis was made of urinary tract
infections or of a kidney disorder.
In June 1997 the veteran submitted VA treatment records from
1970 to 1979. Most of these pertain to treatment of the back
and other orthopedic complaints. There was no assessment of
skin cancer, a sleep disorder, a prostate disorder, urinary
tract infections, a kidney disorder or memory loss.
A psychiatry note from June 1997 noted that the veteran was
functioning with multiple physical limitations including
urinary difficulties. There was no sign of memory impairment
on examination.
A September 1997 report noted complaints of urinary urgency.
The veteran's wife stated that he had no memory at all. Lab
tests were normal. The examiner felt that decreased memory
and forgetfulness may be part of his depression. He was
referred to the VA Dementia Clinic as well as to the Urology
Clinic.
In November 1997 a neuropsychiatric workup was conducted for
memory problems, forgetfulness and decreased reaction time.
The duration of the symptoms was reported to be five years
with progressive worsening over the previous two years. His
past history was found to be "significantly associated"
with depression, PTSD and substance abuse. He also had a
history of head trauma without loss of consciousness as a
child. He reported long time insomnia and nightmares related
to PTSD. The previous sleep study results were reviewed.
The veteran incidentally reported a history of urinary
urgency and frequency but he denied incontinence. After
workup the assessment, in pertinent part, was mild memory
impairment with confounders including depression and PTSD.
A medical certificate submitted in connection with a claim
for aid and attendance noted that the veteran was suffering
from decreased memory and a cognitive disorder.
VA examinations were conducted for purposes of determining
need for aid and attendance in November 1997. On the general
examination the veteran's entire medical history was
reviewed. After an examination the only diagnosis made
relevant to the issues on appeal was possible dementia versus
just slow mental functioning secondary to depression. There
was no diagnosis of skin cancer, a sleep disorder,
prostatitis, urinary tract infections, or a kidney disorder.
Prior laboratory results were reviewed and found to be
negative.
A neuropsychiatric consultation was conducted in December
1997. A lengthy interview was accomplished and testing was
administered. The impression was that the veteran showed
variable concentration and memory on examination. Language
skills, old learned information and visuospatial construction
were intact.
There was no evidence of a dementia syndrome. The examiner
noted that the veteran was undergoing an evaluation for
treatable causes of memory disorders. If none were found it
would be likely that his cognitive dysfunction was related to
depression and PTSD. Although the veteran attributed his
confusion to Paxil this was not a usual side effect of that
medication.
Another December 1997 VA report noted that the veteran's
cognitive deficit consisted of difficulty with concentration
and with his ability to attend to a task. This was most
consistent with depression and PTSD. There was no evidence
of any global dementing disorder or problems with cognition
beyond primarily verbal memory which could well affect his
ability to concentrate.
A computed tomography (CT) of the head in December 1997 was
negative.
Another follow-up report from December 1997 noted that the
veteran complained of numerous problems including chronic
prostatitis, Peyronie's Disease with an implant in January,
chronic bladder infection and a lot of problems with short
term memory. The examiner stated that the neuropsychiatric
evaluation showed significant cognitive impairment. The
diagnoses were PTSD, major depression and "cognitive
problems."
A report from a VA social worker received in December 1997
noted that symptoms associated with PTSD and depression
included difficulty with concentration, short term memory
loss, and nightly sleep disturbance. PTSD was felt to be
aggravated by other medical problems including chronic
prostatitis, and chronic bladder infection.
January 1998 reports noted that the veteran was taking Cipro
for prostatitis. He was evaluated by the Dementia Clinic and
had had a CT scan. He was felt not to have dementing illness
and his cognitive defects seemed to be secondary to
depression.
Another report from January 1998 notes that the veteran was
using Trazadone for sleep but his wife stated that he snored
more often. Past sleep studies had been negative.
A February 1998 report from the veteran's VA psychiatrist
stated that neuropsychiatric testing in November 1997 showed
impairment in attention, concentration and memory. Sleep
disturbances including difficulty falling or staying asleep,
difficulty concentrating, and difficulty recalling important
aspects of traumatic events were all symptoms of PTSD and
were included in the Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition (DSM-IV) diagnostic criteria
for PTSD.
The veteran was hospitalized through VA in February and March
1998 for a PTSD program. The hospital report discusses the
veteran's various medical problems including chronic
prostatitis with benign prostatic hypertrophy. The veteran
gave a history of exposure to AO in Vietnam.
A mental status examination showed to veteran to be alert
with linear thoughts. His recall was intact for remote and
recent events. During the hospitalization the veteran was
noted to have symptoms consistent with pigmented purpuric
dermatosis. There was no indication of skin cancer. Lab
results showed a slightly elevated white blood cell count but
tests including urinalysis and chemistries were otherwise
normal.
A March 1998 report from the veteran's psychiatrist noted
that PTSD symptoms included impairment in attention,
concentration and memory as well as difficulty falling or
staying asleep.
A December 1998 report noted that the veteran was snoring
loudly. It was noted that the past sleep study did not yield
much other than associating his problem with PTSD. He
reported that his sleep remained disrupted. He reported that
he would feel pretty rested upon waking but would become
tired during the day. He reported that he thrashed in his
sleep. The only diagnosis was PTSD.
Criteria
As noted previously above service connection may be granted
for disability resulting from disease or injury incurred in
or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. See
also 38 C.F.R. § 3.303(a),(b),(d) supra.
Disability that is proximately due to or the result of a
service-connected disease or injury shall be service
connected. When service connection is thus established for a
secondary condition, the secondary condition shall be
considered a part of the original condition. 38 C.F.R.
§ 3.310 (1999). When aggravation of a non-service-connected
condition is proximately due to or the result of a service-
connected condition, a veteran shall be compensated for the
degree of disability (but only that degree) over and above
the degree of disability that existed prior to the
aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995).
As noted previously, a disease associated with exposure to
certain herbicide agents listed in 38 C.F.R. § 3.309 will be
considered to have been incurred in service under the
appropriate circumstances even though there is no evidence of
such disease during the period of service.
The diseases listed in 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except for chloracne or other acneform disease
consistent with chloracne, porphyria cutanea tarda, acute and
subacute peripheral neuropathy and respiratory cancers.
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era and
has a disease listed at § 3.309(e) shall be presumed to have
been exposed during such service to an herbicide agent,
unless there is affirmative evidence to establish that the
veteran was not exposed to any such agent during that
service. 38 C.F.R. § 3.307(a)(6).
If a veteran was exposed to an herbicide agent during active
military, naval, or air service certain defined soft-tissue
sarcomas shall be service-connected if the requirements of
§3.307(a)(6) are met even though there is no record of such
disease during service, provided that the rebuttable
presumption provisions of § 3.307(d) are also satisfied. The
term "soft-tissue sarcoma" includes the following: adult
fibrosarcoma; dermatofibrosarcoma protuberans; malignant
fibrous histiocytoma; liposarcoma; leiomyosarcoma;
epithelioid leiomyosarcoma (malignant leiomyoblastoma);
rhabdomyosarcoma; ectomesenchymoma; angiosarcoma
(hemangiosarcoma and lymphangiosarcoma); proliferating
(systemic) angioendotheliomatosis; malignant glomus tumor;
malignant hemangiopericytoma; synovial sarcoma (malignant
synovioma); malignant giant cell tumor of tendon sheath;
malignant schwannoma, including malignant schwannoma with
rhabdomyoblastic differentiation (malignant triton tumor),
glandular and epithelioid malignant schwannomas; malignant
mesenchymoma; malignant granular cell tumor; alveolar soft
part sarcoma; epithelioid sarcoma; clear cell sarcoma of
tendons and aponeuroses; extraskeletal Ewing's sarcoma;
congenital and infantile fibrosarcoma; and malignant
ganglioneuroma. 38 C.F.R. § 3.309(e).
As noted above, where a claim is filed under a presumptive
provision, the veteran is not precluded from establishing
service connection with proof of actual direct causation.
Combee, 34 F.3d 1039. That is to say that if service
connection is not supported under a presumptive paragraph, a
determination must be made whether the disease was actually
incurred in or aggravated by service. The veteran could also
seek presumptive service connection on another ground if
applicable.
In McCartt v. West, 12 Vet. App. 164 (1999), the Court held
that a veteran is not entitled to presumptive herbicide
exposure solely on the basis of having served in the Republic
of Vietnam. The Court held that both service in the Republic
of Vietnam during the designated time period and the
establishment of one of the listed diseases is required in
order to establish entitlement to the in service presumption
of exposure to a herbicide agent.
Malignant tumors are a listed chronic disease that may be
presumptively service connected if manifested to a
compensable degree within one year after service as are
nephritis and organic diseases of the nervous system.
38 C.F.R. §§ 3.307, 3.309(a) (1999).
Analysis
The Board reiterates the three requirements for a well-
grounded claim: (1) medical evidence of a current disability;
(2) medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service injury or disease and a current disability. See
Caluza, supra.
Skin cancer
The veteran asserts that he has cancerous skin lesions which
he feels are related to exposure to AO in Vietnam.
First, and this holds true with all of the claims pertaining
to asserted AO exposure, the veteran clearly did serve in
Vietnam and therefore very well may have been exposed to AO
or another herbicide while there. However, as the pertinent
regulations make clear, only those veterans who show that
they have a disease recognized by VA as having a relationship
to AO exposure are entitled to the presumption of AO exposure
based on qualifying service in Vietnam. McCartt, supra.
Nonetheless, in the veteran's case exposure to AO is not the
dispositive question. Regardless of whether or not there was
AO exposure, presumptive service connection under 38 C.F.R.
§ 3.309(e) is only provided for a limited number of
disabilities of which "skin cancer" used generically is not
one. A number of soft tissue sarcomas are listed under
38 C.F.R. § 3.309(e). However, the veteran does not have a
diagnosis of any of these. Therefore there is no basis for
entitlement to a service connection using the herbicide
regulations.
In accordance with the Combee case, applicability of other
presumptive periods was considered (specifically presumptive
service connection for chronic diseases under 38 C.F.R.
§ 3.309(a)) as was direct service connection. 38 C.F.R.
§ 3.309(a) lists malignant tumors or tumors of the brain,
spinal cord, or peripheral nerves as a disease which can be
presumed to have been incurred in service if manifested to a
compensable degree within a year after service.
However, the veteran's claim is nonetheless not well grounded
because the veteran does not have a diagnosis of a malignant
tumor of the skin. The only diagnosis was a history of
actinic keratoses treated in the past with no evidence of
persistence or recurrence. Therefore the claim is not well
grounded. 38 C.F.R. §§3.303, 3.307, 3.309; Caluza, 7 Vet.
App. 498; Brammer, 3 Vet. App. 223, 225.
The veteran has failed to establish well groundedness on a
direct basis as well. There was no diagnosis of skin cancer
in service for the purposes of 38 C.F.R. § 3.303(a) or (b).
The evidence as a whole does not show that the veteran has
skin cancer related to his service. 38 C.F.R. § 3.303(d).
In essence, there is no in service or post service evidence
of skin cancer.
Sleep disorder
The veteran asserts that he feels that a sleep disorder is
related to AO exposure in service. Again, without reaching
the issue of whether there was AO exposure or not, a sleep
disorder is not a disability for which presumptive service
connection is available pursuant to 38 C.F.R. § 3.309(e).
The list of disabilities having a relationship to AO exposure
does not include a sleep disorder, listed as such.
A sleep disorder is likewise not a listed chronic disorder
under 38 C.F.R. § 3.309(a). The Board recognizes that
fatigue or difficulty sleeping may be a function of another
disorder.
Considering direct incurrence, the veteran does appear to
have a sleep disorder and therefore has satisfied the
requirement under Caluza and Brammer of a present disability.
In this regard the evidence clearly demonstrates that the
veteran has insomnia with difficulty going to sleep and
maintaining sleep. However, the evidence also shows rather
unequivocally that the veteran's insomnia is not a discrete
sleep disorder but rather is a function of the service
connected psychiatric disorder of PTSD with depression.
As PTSD is already service connected, the veteran is already
being compensated for all of his PTSD symptoms including any
associated sleep difficulties.
The veteran has asserted that he has a disorder manifested by
snoring and sleep apnea in addition to his insomnia although
no sleep apnea has been documented through testing. There is
also some evidence of abnormal leg movements during sleep
which was not felt to require any treatment.
However, even to the extent that the veteran has additional
sleep related symptoms, his claim cannot be considered to be
well grounded because the service medical records do not show
any treatment for, or report of, a sleep disorder manifested
by snoring, sleep apnea or abnormal leg movements. Moreover,
he has not submitted (and the claims folder does not contain)
competent medical evidence relating these symptoms to his
service or to a service connected disability. 38 C.F.R.
§§3.303, 3.307, 3.309; Caluza, supra.
Prostate disorder
Prostate cancer is a disease which is recognized to have a
relationship to AO exposure and for which presumptive service
connection is provided pursuant to 38 C.F.R. § 3.309(e).
However, the veteran does not have a diagnosis of prostate
cancer. Accordingly the provisions of 38 C.F.R. § 3.309 are
not for application.
Pursuant to Combee, direct service connection was considered
for prostatitis but this was first shown many years after
service. There was no inservice treatment for prostatitis.
Moreover there is no medical evidence of a nexus between
prostatitis and his military service or between prostatitis
and any service connected disability.
Accordingly the claim of entitlement to service connection
for prostatitis is not well grounded. 38 C.F.R. §§3.303,
3.307, 3.309; Caluza, supra.
Memory loss
The claims folder contains copious amounts of evidence
showing that the veteran has a current cognitive impairment.
Therefore the current disability prong of the Caluza/Brammer
test is satisfied.
However, there is no evidence of treatment for memory loss or
other cognitive impairment in service. Therefore, there is
no evidence of direct incurrence for the purposes of
38 C.F.R. § 3.303(a) and there is certainly no showing of a
chronic disability in service as set forth in 38 C.F.R.
§ 3.303(b).
The veteran stated at his Decision Review Officer conference
in May 1998 that he felt that his memory loss may have been
related to AO exposure. Neither memory loss nor a cognitive
disorder is listed under 38 C.F.R. § 3.309(e) as a disability
that can be associated with AO exposure. Organic disease of
the nervous system is a chronic disease under 38 C.F.R.
§ 3.309(a) that is presumptively service connected if shown
to a compensable degree within a year after service.
However, no cognitive impairment was shown within a year
after the veteran's service or for many years after that.
Accordingly there is no basis upon which to well ground the
claim using a presumptive provision.
Service connection can be established for a disorder shown
many years after service if all of the evidence of record
shows that the disability was incurred in service or is
related proximately to a service connected disability.
38 C.F.R. §§ 3.303(d), 3.310. There is no competent medical
evidence of record in the veteran's case establishing a nexus
between post service cognitive problems and the veteran's
service. Therefore the veteran's claim based on direct
incurrence is not well grounded. 38 C.F.R. §§3.303, 3.307,
3.309; Caluza, supra.
In fact, the evidence suggests that the veteran's cognitive
problems primarily consist of difficulty with attention and
short term memory and are most likely a function of PTSD with
depression - a disability for which the veteran is already
service connected. There does not appear to be any dementing
disease or other cognitive disability apart from symptoms
attributable to PTSD and there is no indication of a separate
disorder secondary to PTSD.
Urinary tract infection and a kidney disorder
The medical evidence of record shows that the veteran has
reported in recent years a history of various genitourinary
problems. However, despite numerous workups there in no
competent medical evidence of a current chronic disorder
manifested by urinary tract infections or of a kidney
disorder. Therefore the claim is not well grounded. Caluza,
7 Vet. App. 498; Brammer, 3 Vet. App. 223, 225.
It appears that the veteran's primary genitourinary problems
consist of prostatitis and Peyronie's Disease treated with a
penile implant. He does complain of urinary frequency and
urgency and has reported incontinence and a history of
bladder infections.
However, even if the veteran has current bladder infections
as claimed or current urinary tract infections or a kidney
infection, the claim would still be not well grounded because
the claim lacks competent medical evidence linking any such
disorder to his service or to a service connected disability.
Neither urinary tract infections nor a kidney disorder are
listed as diseases associated with AO exposure under
38 C.F.R. § 3.309(e) although nephritis, if that was shown,
could be presumptively service connected as a chronic disease
if manifested to a compensable degree within one year after
service.
As noted in Savage, evidence to show chronicity must be
medical unless it relates to a disorder as to which lay
evidence is competent. Savage, 10 Vet. App. 488, 498. The
veteran reported skin rashes dating to service but the case
lacks competent evidence of continuity of skin cancer
symptomatology or recurrent sleep disturbances,
genitourinary/kidney symptoms, or memory loss dating back to
service much less a diagnosis of a chronic disorder for the
purpose of VA compensation benefits. There is no medical
evidence of a nexus between in service and post service
findings and the currently diagnosed disabilities.
Simply put, there is no evidence that the veteran currently
has chronic acquired disorders which developed in service or
during an applicable presumption period. Competent medical
evidence of a relationship between any currently diagnosed
disorder and service or any service connected disability does
not exist. Voerth, 13 Vet. App. 117; McManaway, 13 Vet.
App. 60; Savage, 10 Vet. App. 488.
In essence, the veteran's claims are based solely on his lay
opinion and he has not offered any evidence of medical
training or expertise demonstrating that he has been trained
in the medical arts thereby rendering him competent to offer
an opinion as to diagnosis and/or etiology of a disorder. He
is clearly alleging a fact which is beyond his competence to
do so. Espiritu, 2 Vet. App. 492; King, 5 Vet. App. 19, 21.
While a lay person may report his symptomatology, he does not
have the competency of a trained health care professional to
express opinions as to diagnosis and/or etiology as to any
claimed disorder. Assertions as to these matters are
therefore not presumptively credible. King, 5 Vet. App. 19,
21.
As it is the province of trained health care professionals to
enter conclusions that require medical opinions as to
causation, Grivois, 6 Vet. App. 136, 139, the veteran's lay
opinion is an insufficient basis upon which to find his
claims well grounded. Espiritu, 2 Vet. App. 492.
Accordingly, as a well-grounded claim must be supported by
evidence, not merely allegations, Tirpak, 2 Vet. App. 609,
611, the appellant's claims must be denied as not well
grounded.
As the claims for service connection are not well grounded,
the doctrine of reasonable doubt has no application to the
veteran's case. Gilbert, 1 Vet. App. 49, 53.
The RO found the claims of entitlement to service connection
for memory loss a urinary tract infection and a kidney
disorder to be not well grounded but the other claims were
not specifically found by the RO to be not well grounded. To
the extent that the Board considered and denied some of the
appellant's claims on a ground different from that of the RO,
the appellant has not been prejudiced by the decision. This
is because in assuming that claims were well grounded, the RO
accorded the appellant greater consideration than his claims
in fact warranted under the circumstances. Bernard, 4 Vet.
App. 384.
In light of the implausibility of the appellant's claims and
his failure to meet his initial burden in the adjudication
process, the Board concludes that he has not been prejudiced
by the decision to deny his appeal for service connection.
Because the veteran has not submitted well-grounded claims,
VA is under no obligation to assist him in the development of
facts pertinent to the claims. 38 U.S.C.A. § 5107(a);
Morton, 12 Vet. App. 477.
The Board is cognizant, however, that the Court has held that
VA may have an obligation under 38 U.S.C.A. § 5103(a) to
advise the claimant of evidence needed to complete a claim.
Beausoleil, 8 Vet. App. 459. The Court has held that the
section 5103(a) duty requires that, when a claimant
identifies medical evidence that may complete an application
but is not in the possession of VA, VA must advise the
claimant to attempt to obtain that evidence. Brewer, 11 Vet.
App. 228.
Pursuant to 38 U.S.C.A. § 5103(a), if VA is placed on notice
of the possible existence of information that would render
the claim plausible and therefore well grounded, VA has the
duty to advise the veteran of the necessity to obtain the
information. McKnight, 131 F.3d at 1484-1485; Robinette, 8
Vet. App. 69. 80.
In this case, the RO has informed the veteran of the evidence
necessary to support his claim, thus fulfilling its duty in
this instance. The veteran has not indicated the existence
of any evidence that has not already been obtained and/or
requested that would well ground his claims. 38 U.S.C.A.
§ 5103(a); Epps, supra.
ORDER
The veteran having submitted new and material evidence to
reopen a claim of entitlement to service connection for a
skin disorder, the appeal is granted to this extent.
The veteran not having submitted a well grounded claim of
entitlement to service connection for a skin disorder, the
appeal is denied.
The veteran not having submitted well grounded claims of
entitlement to service connection for skin cancer, a sleep
disorder and a prostate disorder as secondary to AO exposure,
the appeal is denied.
The veteran not having submitted well grounded claims of
entitlement to service connection for memory loss, a urinary
tract infection, and a kidney disorder, the appeal is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals